April 3, 2012

Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."...

The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick -- both Republican appointees --r emained silent, the source said.

Fascinatingly intense. Obviously, the DOJ will concede the power of judicial review, as historically recognized in Marbury. But the court is asking it to spell out exactly what the Administration thinks the limits are. Obama — like many pundits and politicians — throws around the ideas of judicial "restraint" and "activism," but the judges themselves tend to speak in terms of "saying what the law is" and putting the law — constitutional and statutory — in the proper hierarchy — with the Constitution on top — with no element of judicial will injected into the process.

It will be interesting to see if the Administration will endorse such a bland — but highly deferential — view of the judicial power or if it will explicate some more nuanced notion of when courts ought to let important/economic legislation prevail.

No fan of judicial review I, but, if GodZero wants to challenge it, he ought to grow a pair and say he means to do so.

That's not the Chicago Way (veiled threats of the type he's so fond of making, of course, are), but, as of now, SCOTUS has the power to rule up or down on a piece of legislation's constitutionality.

If Zero wants to go the, "Mr Roberts has made his decision, now let him enforce it", route (and he's already ignored a couple of court orders) , he ought to say so, otherwise, an impeachment proceeding would certainly liven up the summer.

Obama never had much of a chance with Alito on this case anyway. He DID have, I think, a dark horse shot with Roberts.

Not anymore.

It's Kennedy or bust.

But I can't imagine Kennedy would take too kindly to a gauntlet like that, either.

Nothing is lost if the whole law is struck down. Congress can always do a copy/paste, with the constitutionally offending portions of the law tweaked, if it wanted to.

Quite a bit is lost if the courts cede their ability to act as a check on the ability of the elective branches to ride roughshod over the Constitution.

Even if you thought it the mandate was a borderline case, do you really want to grant this authority to an administration the even now cannot articulate any kind of reasonably limiting principle to the commerce clause?

I assume the limits of judicial review have been clearly if not absolutely defined and established in the 209 years since Marbury v Madison. What difference what the Punk's Administration thinks they are?

I am a dumb art major with some other stuff (nursing, religious studies, mental health) mooshed in over the years.

And this I do remember from my days with Mr. Taylor in high school US History class: There are three branches of government. They have different functions. The Judical is there to make sure the laws are followed and in particular, that they conform to the limits that were put in place through the US Constitution. Or something like that.

I also remember the "checks and balances" thing because the framers of all this (dumb dudes that they were) did not trust any one group with all the power.

I say that DOJ won't respond. They will say they don't have to take pop quizzes in legal theory to keep angry Federal judges assuaged nor do they have to submit to punitive homework assignments given by the same. If Holder does what Judge Smith ordered it will be an embarrassing comeuppance for the DOJ and the President.

I'm curious... If Obamacare was deemed constitutional, would that set the stage for a subsequent administration to pass a law mandating gun ownership via this case's precedent regarding the 10th Amendment and the 2nd Amendment's "A well regulated Militia, being necessary to the security of a free State..."

Of course, anybody ignorant enough to think Hawaii is part of Asia or that, at Promoontory Point in 1869, the country was united by the Inter-Continental Railroad is too ignorant to know how that turned out.

Matt -- section eight expressly provides Congress the power to provide for organizing and arming the militia, even though the militia is not a national-level organization, but is a local-level entity.

Does that power mean that Congress can "arm the militia" merely by decreeing that every member of the militia go out and buy their own arms, much like Obama "provided insurance to millions of uninsured" merely by making it illegal to not have insurance?

Since the militia is a non-governmental entity, and its first use here was against the then-government and not in protection of the government, even though most militia members did bring their own weapons to fight with, it is hard to see how the government compelling the purchase of arms, rather than government providing the arms itself, would be consistent with the history and purpose of the militia.

Judicial activism is when the justices rule in a way you don't like, even when the Constitution is rather plain, the history is clear, and it supports the ruling -- which should really be seen as unremarkable. See reactions to Heller.

Judicial restraint is when justices rule in a way you like, whether or not their ruling has much basis in the Constitution or history. Nobody ever complains about rulings they like, nor would one expect them to.

I've been thinking of a multiple page card based based on three blind mice with the aim of thrilling a young nephew and by extension his parents. Sly, I know. Then I came to the part about,

"Have you ever seen such a sight in your life?"

and imagined how could I depict that. So I look for it everywhere presently for hints and see it in things like this.

No. I have never seen such a sight. This is a new one on me. Write three page single spaced about ... everyone here could do that easily without even trying, but, com'on, have you ever seen such a thing? No. And back we go again. The thing is the judge can say the case goes nowhere until he gets the three pages, or goes unfavorably. I think. I don't know. Maybe this would make a better card than mice.

Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."...

How many lies are in that one statement? Courts overturning laws has a long precedent. There's nothing unprecedented or even extraordinary about it. And Obamacare was not passed by a strong majority, either. It passed 60-39 in the Senate and about 219-212 in the House.

We were told that Obama was so intelligent, the smartest man in any room. I'd love for someone to provide some actual proof of his intelligence because, quite frankly, he comes across as not very bright. Ignorant of history. Ignorant of basic economics. Ignorant of scientific matters such as energy. Pretty stupid about foreign policy. I'll admit he's a freaking genius when it comes to paying off his political cronies but beyond that, not so much.

Congress has both the power "to raise and support Armies" and the power "to provide for organizing, arming, and disciplining, the Militia". Either power would allow Congress to require that people purchase weapons, if Congress felt that was more effective than levying a tax and using the money to buy weapons for the troops.

Congress has this power regardless of what the SCOTUS decides about the scope of the commerce clause.

" Obviously, the DOJ will concede the power of judicial review, as historically recognized in Marbury."

i give a 85% chance they concede. but that's not the interesting part. the interesting part will be the way in which the probably concession is written. my guess it will be at a fourth grade level with some kind of hissy fit.

Judicial restraint is when justices rule in a way you like, whether or not their ruling has much basis in the Constitution or history. Nobody ever complains about rulings they like, nor would one expect them to.

Another thing nobody ever does is to succeed in spinning a tautological premise into a substantive conclusion. Merely observing that "judicial activism" is a pejorative doesn't bring you one millimeter closer to proving that it's an empty pejorative. Nobody ever describes rulings they like as "incoherent" or "self-interested" either-- but no one is goose enough to claim that this somehow proves that those criticisms are meaningless.

I found it rather amusing when a sympathetic reporter at the AP's Editors lunch today asked Obama a question that allowed him to "clarify" his "unprecedented" comment. Clearly Obama, his political team, and the media must all recognize that his comment yesterday was quite unseemly so he attempted to walk it back today.

I did... and I don't. What is there about the case that's actually before the panel that makes it necessary for the judges to hear DOJ's interpretation of a line from a political speech their boss made?

First he's made several about ignoring or by-passing Congress, even now as he praises it ... fact is he already has by-passed Congress when it suited him. Example, of the egregious type: The new DHS ruling that they will grant & recognize "unlawfull presence waivers" for illegal immigrants. Say what?

Next, now he implies the SCOTUS is subservient branch of government, and that, by implication of precedence, he may ignore court rulings that don't suit him.

"It is not common for appeals courts to introduce party statements from outside the courtroom and demand explanations, but that’s only because most litigants aren’t dumb enough to make statements outside the courtroom likely to impact their cases. The notable exception to that general rule is the government-as-litigant, which, because it is led by politicians and ever-shifting public policy, is more likely than most litigants to have to explain statements or policies that may run against its best legal interests.

I’ll give you just two recent examples, where appellate courts have done like the Fifth Circuit did here. First, when the Obama Administration announced its decision to not defend DOMA even while it continues to enforce DOMA, several judges in DOMA-related cases (and a few in barely-related cases) demanded that DOJ explain. Those demands for explanation came from both Republican- and Democrat-appointed judges. Second, after months of the Administration attempting to push its “prosecutorial discretion” policy with respect to aliens in removal proceedings, the Ninth Circuit finally fed up with the apparent collision of the Administration’s announced discretion policy and the actual prosecutorial decisions of DHS, demanded in five test cases that DOJ explain what the discretion policy actually entailed and what that means for the Ninth Circuit’s cases. So this happens and it’s not the first time for Obama’s Administration.

As you noted, DOJ isn’t arguing President Obama’s “unprecedented” talking point with respect to the healthcare reform law. DOJ’s not that stupid. But from the courts’ point of view, that is a reason to be more concerned by Obama’s statement, not less. If Obama is announcing a shift in the Executive Branch’s position, of which DOJ is a part, then the courts are entitled to ask about it. Now, you and I and the judges know that Obama’s probably not announcing policy changes in what was just a campaign speech. But words have consequences, particularly for litigants. The courts may choose take Obama at his word, unless he explains that it was just a campaign speech and not intended to represent the position of the Executive Branch on the matter. The Fifth Circuit’s “homework assignment” is a fairly gentle reminder to the President that he actually leads the United States government and not just the campaign for his reelection."

.I did... and I don't. What is there about the case that's actually before the panel that makes it necessary for the judges to hear DOJ's interpretation of a line from a political speech their boss made?

The courts may choose take Obama at his word, unless he explains that it was just a campaign speech and not intended to represent the position of the Executive Branch on the matter

OBAMA: "I think the American people understand and I think the justices should understand that, in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care."

Obama is voicing his remarks directly at the justices here, directly at the judiciary -- "the justices should understand." Sure, he was probably just shooting off his mouth like he usually does, but this was an in-your-face comment.

" ... saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

His argument would be a lot more compelling if that "strong majority" had included a significant number from the other Party. It was remarked at the time that huge-scale programs (Soc. Sec., Medicare) had significant bipartisan approval. In the case of Obamacare, it was strictly a party-line vote with significant legislative "bribes" thrown in. Obama lost all standing to appeal for deference from the Court.

Doubt whether there'll be tanks in the street yet there'll be SEIU and its many pals there wearing their purple shirts and carrying their wooden staves, merely to have something to lean on of course.

Wonder what fun actitivities Obama's got planned for Charlotte this summer? I mean besides his Greek Columns and his Golden Chariot to carry him into the Stadium. I mean, after all this do we really need an election, can't he simply declare himself President for Life?

Suppose DOJ responds-- padding it out to three pages as required-- that if the Supreme Court fails to find in the government's favor in its PPACA case, the President intends to surround the Supreme Court with a phalanx of tanks until they relent. In what way should this answer influence the Fifth Circuit panel's decision in its own PPACA case?

Nobody ever complains about rulings they like, nor would one expect them to.

Revenant responds: Speak for yourself.

Great point. I once heard Ralph Nader opine, on an NPR station, that inventing rights in the constitution is dangerous because it has many of the same elements that would allow activist judges my remove rights in the constitution. This is in regards to Roe V. Wade.

He was referring to Roe V. Wade. My respect for the man increased dramatically, since I saw this evidence of a political leader with intellectual honesty.

: "I think the American people understand and I think the justices should understand that, in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care."

Obama must not have read any of the oral argument, which made it perfectly clear that the justices fully understand the relationship between the individual mandate and the rest of the Act and that they are seriously concerned about the interdependence of the Act's provisions and the consequences overturning the mandate might have. However, the argument also showed that the justices understand -- though Obama apparently doesn't -- that the relationship between the mandate and the Act's preexisting condition requirements has absolutely nothing to do with whether the mandate is Constitutional.

Maybe I'm naive but this seems like s very big deal to me. It seems the 5th is telling the president to put up or shut up. And isn't it unprecedented for the president to so directly challenge the Supremes?

"or if it will explicate some more nuanced notion of when courts ought to let important/economic legislation prevail." Yeerks. It would be hard to find a "more important economic legislation" than some of Roosevelt's during the New Deal. Struck down.

You know a politician, even a president, will demagogue the other party, but Obama pretty much demagogues everybody but his lapdogs and everything but his pet projects. Every day he wakes up and draws a smaller circle of loyalty around himself.

"You know a politician, even a president, will demagogue the other party, but Obama pretty much demagogues everybody but his lapdogs and everything but his pet projects. Every day he wakes up and draws a smaller circle of loyalty around himself. "

He really is the most pathetic "uniter" of all time, isn't he? A teeny, tiny, sad little man and an embarrassment to the office.

OBAMA HAS BEEN SUCCESSFUL AT ONE THING .....HE HAS DIVIDED OUR NATION LIKE NEVER BEFORE......I HAVE NEVER IN MY 51 YR'S OF LIFE, SEEN SO MUCH ABSOLUTE DISHONESTY IN A LEADER...SO MUCH HATRED/ SO MUCH FAILURE/ HIGH GAS PRICES/ ANGER/ UN EMPLOYMENT/ AND INSTEAD OF LEADING.....HE BLAMES EVERYONE ELSE....FIRST HE BEGGED FOR THE JOB, THEN ONCE HE GOT THE JOB HE SAID IT ALL SCREWED, BECAUSE OF BUSH, AND SAID IT WILL TAKE A COUPLE YR'S......WELL NOW 3 YRS LATER..WHICH IS A TOTAL OF 156 WEEKS OBAMA SPENT 94 OF THOSE 156 WEEKS GOLFING, HE HAS HAD 11 VACATIONS, AND HE SAY'S I HAD NO IDEA HOW BAD BUSH REALLY DID, IM GOING TO NEED 4 MORE YR'S ///PEOPLE THIS GUY OBAMA WHO TAUGHT THE BOOK RULES FOR RADICALS WRITTEN BY SAUL ALINSKY.....THE COMMUNIST AUTHOR WHO DEDICATES THE BOOK TO SATAN THIS IS NO JOKE!!!

Lincoln had some thoughts on this issue in his first inaugural address:

I do not forget the position, assumed by some, that Constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

This statement was of course made with reference to the right of states to secede from the Union, which Lincoln firmly viewed as prohibited by the Constitution. Though he does not precisely say so, Lincoln viewed that this particular constitution question was not the provence of the Court, because of its fundamental importance to the Union. With other issues not so fundamental, the nation should live with Court decisions, even if erroneous, pending change in the Court's view or other constitutionally valid means of reversing the decision.

Despite intimations to the contrary, Obama is not the new Lincoln. He lacks Lincoln's depth, eloquence and legal skill. He also has such a low opinion of the people that he would not advance an argument as sophisticated (should I have said "nuanced") as Lincoln's.

I really hope people can wake up and get off their butts and save our NATION...As Obama taught the book Rules for Radical's --written by Saul Alinsky, who dedicates the book to Satan....the part that is scary, is that it is made clear that the reason why the book is dedicated to Lucifer, is because Alinsky states that Satan was successful of creating his own kingdom by becoming a kingdom of destroyers of the establishment...IT IS 100% CRYSTAL CLEAR that the HOPE & CHANGE we imagined & Obama spoke of are far apart....OBAMA BELIEVES AMERICA HAS NEVER BEEN GREAT UNTIL HE BECAME PRESIDENT....HIS WIFE SPOKE FOR THE 1ST TIME IN HER LIFE SHE SEES AN AMERICA SHE LIKES....PEOPLE MUST KNOW OBAMA IS A WOLF IN WOLFS CLOTHES NOW....YOU SEE HIS RECORD, YOU SEE HIS PLANS...YOU SEE HE DIS REGARDS THE CONSTITUTION....AND LIKE THE COMMUNIST'S WE ESCAPED FROM, WHEN THE USA WAS FOUNDED, THOSE OLD COMMUNIST'S WE ESCAPED FROM 200 PLUS YEARS AGO, THEY HAVE MOVED BACK IN TO AMERICA, THEY HAVE FILLED THE CLASS ROOMS, THEY REMOVED THE BIBLE FROM ALL SCHOOLS, THEY REMOVED PRAYER FROM ALL SCHOOLS, AND JUST AS A BOAT ON AN OCEAN NEEDS A COMPASS AND A RADIO FOR COMMUNICATION....THESE LIBERALS HAVE INFILTRATED OUR SCHOOLS AND BY THE ACT OF REMOVING THE BIBLE OUR MORAL COMPASS, THEN THEY REMOVED PRAYER, WHICH IS THE COMMUNICATION, AND HERE WE ABSOLUTELY ARE...A NATION COMPLETELY VOID OF MORALS AND GOD, AND OR PRAYER....OUR NATION IS RIPE, FOR THE WICKED COMMUNISTS, WHO HAVE WORKED LIKE A LION WOULD CHASE AND CHASE AND CHASE DOWN THE YOUNG GAZELLE, UNTIL IT IS TIRED, AND IT IS WEAK, THEN IT POUNCES ON THE GAZELLE AND DEVOURS IT.....YES THIS GUY SAYS HE WILL FUNDAMENTALLY TRANSFORM AMERICA....HE PLANS ON DESTROYING US....AND JUST AS HE WHISPERS TO THE LEADER OF RUSSIA THAT WAIT UNTIL AFTER THE ELECTION...THEN HE WILL HAVE FLEXIBILITY....THAT IS A WARNING PEOPLE....RUSSIA HAS ABSOLUTELY BLOCKED THE USA FROM DEALING WITH IRAN, WHILE OUR SOLDIERS WERE GETTING KILLED IN IRAQ...WE FOUND WEAPON AFTER WEAPON THAT THE RUSSIANS HAD LITERALLY SOLD WEAPONS TO IRAQ, AND THOSE WEAPONS KILLED AMERICAN SOLDIERS...YOU SEE THAT IRAQ HAD A SANCTION ON THEM WHERE ALL NATIONS EVEN RUSSIA HAD PROMISED TO NOT SELL WEAPONS AT THE TIME AND FOR LIKE 12 YEARS IN A ROW BEFORE THE WAR...BUT WE SAW OVER AND OVER HOW RUSSIA HAS WORKED AGAINST AMERICA.....AND THIS GUY OBAMA TELLS MEDVEDEV RUSSIAS PRES THAT HE WILL WORK WITH THEM AFTER THE ELECTION.. WOW!!!

It has occurred to me that the 5th Circuit posed a rhetorical question, really expecting no written answer ... the absence of which would establish their point quite nicely and leave the Obamabots with egg on their face for a cowardly silence.